With legal battle over carbon tax set to start in 2019, here are the major players’ arguments

What this spat is not is a debate about whether or not climate change is real and whether or not humans are causing it

Justin Trudeau’s imposition of a carbon tax on provinces that don't have their own will be challenged in court by Scott Moe's Saskatchewan government and Doug Ford's in Ontario.Adrian Wyld/The Canadian Press; Liam Richards/CP; Graham Hughes/CP

EDMONTON — The documents are filed. All that’s left is for the lawyers to put on their robes and descend on the courthouse.

Then the legal spat over the carbon tax can begin in earnest. In 2019, the carbon tax fight comes before the courts, as Saskatchewan and Ontario have asked their respective highest provincial courts to weigh the constitutionality of the federal government’s imposition of a carbon tax on provinces that haven’t put in place their own.

The documents filed with the Saskatchewan Court of Appeal by the federal government and Saskatchewan detail the legal case that each government is going to make. What the court decides could determine the future of one of Justin Trudeau’s government’s signature policies.

Saskatchewan, a long-term hold-out over a carbon tax, has asked its top court to weigh in on whether or not the Liberal imposition of carbon pricing on provinces that didn’t make their own pricing schemes are constitutional.

Ontario is doing the same, but Saskatchewan’s case is up first, with court dates set for Feb. 13-14.

So what’s the issue?

What it is not is a debate about whether or not climate change is real and whether or not humans are causing it.

Nor is it particularly about whether or not the carbon tax is an effective means of reducing emissions. The federal government’s court filing contains ample quantities of Liberal talking points and old speeches making this case.

But, that’s not really the legal question at play here. That’s the political one.

“The Attorney General submits that the Court should not be swayed by arguments about the importance of climate change in today’s world,” says Saskatchewan’s filings. “Legislative jurisdiction under our Constitution is not determined by the importance of the matter.”

In brief, this case is about which level of government has jurisdiction to regulate carbon emissions. Or is it shared jurisdiction where the federal government can impose a tax and provinces are free to have carbon policies too? And, if it is the federal government that has jurisdiction, how does the Constitution grant this power?

This is linked to the question of whether or not the carbon tax is … a tax, as opposed to a “levy” and if the federal government has the power to put a tax in place in this circumstance, and with variability across the country.

Let’s walk through each in turn

Historically speaking, some aspects of pollution have been regulated at the provincial level. Industrial regulations, say, are a provincial matter. So, asks Saskatchewan, why would climate change be a federal responsibility?

“There is no free standing federal jurisdiction over the environment or pollution,” says Saskatchewan’s factum.

But the federal government says Saskatchewan, by being intransigent on carbon pricing, risks affecting British Columbia because climate change has global effects.

Lawyers for the Liberal government, a tad opaquely, draw a line between Saskatchewan’s refusal to implement a carbon tax and the fact that, annually, large swaths of British Columbia catch on fire and burn down.

The Saskatchewan government rejects this: “The greenhouse effect of a megaton of emissions from Saskatchewan upon British Columbia, for example, is no different than it is upon Timbuktu.”

Why do the Liberals think they have the power?

The federal government says this power comes from something called the POGG clause — the peace, order and good government clause — of the Constitution. The Liberals say this allows the federal government to step in and do something nationally, if there’s a national interest component to that policy.

Since climate change affects all of us, it’s in the national interest, therefore, the federal government can impose a carbon tax. “GHG emissions are a matter so vital to the interest of the nation as a whole that GHG emissions must be dealt with on a national basis,” its factum argues.

Why would climate change be a federal responsibility?

Saskatchewan argues that the federal government stepping in on what each province wants to do to combat climate change is an “Ottawa knows best” approach that disregards the principles of federalism — both as spelled out in the Constitution and as exist historically in principle.

A co-operative approach would be preferable, but Saskatchewan says the federal approach is the opposite of co-operation because there’s no ability to refuse to participate. “Nothing less will satisfy the principle that provinces are sovereign and autonomous within the realms of their jurisdiction and that neither level of government is subordinate to the other,” it says.

The federal government disagrees, naturally. “Federal jurisdiction to legislate as a matter national concern does not shift the balance of legislative power, but rather provides Parliament with a flexible tool, reflecting the scale of the problem,” it argues.

What about the tax?

The other thing at issue is whether or not the carbon tax is a tax, because, as Saskatchewan lays out, it’s a powerful tool that should be used carefully. “Furthermore, it is well established that the federal government cannot use its taxation power as a guise to regulate matters within provincial jurisdiction,” say Saskatchewan’s lawyers.

The federal government’s lawyers argue that the carbon tax isn’t a tax. It’s, rather, a regulatory meant to change behaviour by compelling people to use less carbon. It says that in order for something to be a tax, its primary purpose must be to raise revenue.

The feds counter with even if it is a tax, well, they still have the power.

Saskatchewan also objects to the tax only applying in certain provinces, saying this is unconstitutional. The feds disagree: “There is no constitutional requirement that federal laws operate equally throughout Canada.”

Justin Trudeau’s Liberal government has released its last budget before the fall federal election

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